Wizards of Washington The United States Supreme Court on Adoptive Couple v. Baby Girl

Abstract

In 2013 the U.S. Supreme Court issued a 5-4 opinion in an Indian adoption case that sent shock waves through the Indian community particularly Indian law scholars. The case involved an unwed non-Indian mother and a Cherokee tribal member father and a newborn child that has come to be known as Baby Girl. At issue was a law passed in 1978 that provides special rights to Indian children and Indian parents. The Indian Child Welfare Act (PL95-608) came about as a result of an astonishing number of Indian Children being removed from their families by state child protection agencies without due process being provided to the family. Private adoption agencies and adoption lawyers seized on the opportunity because there was a large unmet need for adoptable children in the country. The Congress in its findings indicated that state agencies were indiscriminately removing Indian children based on standards of white middle class America which opponents argued should not be applied to Indian children.

There is a plethora of literature to document the heartbreak and tragedies that resulted. Since the 2013 decision, Indian law scholars have been unrelenting in their criticism of the Courts opinion. Scholars have accused the Court of everything from incompetence to sympathy for the adopting parents to outright defying the will of Congress. Even the Court dissent made some of these accusations. Justice Thomas; a long time critique of the plenary power of Congress in Indian affairs, wrote in his separate concurring opinion that “…constitutional avoidance compels this outcome”. He provides a lengthy reasoning of why Congress lacks plenary power over Indian affairs then states “Because the Court’s plausible interpretation of the relevant sections of the ICWA avoids these constitutional problems, I concur”. Then in a second concurring opinion Justice Breyer states “we should decide no more than is necessary”. He then goes on to explain how ICWA remains intact and is still a valuable law.

While some commentators have touched on these aspects of the decision, few have thoroughly analyzed it and none have reached the conclusion I have reached. It is my contention that constitutional avoidance is the heart of this case as well as the Court’s desire to embrace the purpose of the ICWA but at the same time send a message to Congress that they have overstepped their bounds. I can almost envision Chief Justice Roberts telling Justice Alito to write the details of the opinion then telling Justice Thomas to justify the basis then telling Justice Breyer to signal that ICWA is still alive and well.

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